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Adverse Possession Survey
I’ve got a client who is a lot owner along the Missouri River. The Developer years ago left a gap between the subdivision and the river. The lot owner wants to acquire the land between his lot and the river. There is no owner of record for the property between him and the river, so no one is paying taxes on it. I’m thinking we could do a boundary line adjustment between the clients property and the river. File the survey and mean while the client would fence it and pay taxes on the property. In five years he will have perfected his Adverse Possession claim. This property is in Montana.
Anybody see any problems with this?
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20 Replies
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I would make sure he understands he’s still assuming some risk. A perfected adverse possession claim is still just a claim.
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No apparent owner. Why do a boundary line adjustment? Why not just fence the area but wouldn’t that create a landlocked parcel?
Me thinks that it would be easier, quicker and more satisfying to seek out heirs or acquire quiet title rights through a legal process than the path described. That said, I don’t practice in Montana nor do I have any familiarity in the system there.
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I’ve got a client who is a lot owner along the Missouri River. The Developer years ago left a gap between the subdivision and the river. … There is no owner of record for the property between him and the river…
I’ll bet you a growler of good beer that there IS an owner of record.
You already know who it is: the original subdivider (OS) (they had title with a riparian boundary but subdivided using fixed lot lines).
The OS took title to that land but they never deeded it away… so unless there was an action taking the land (e.g. tax foreclosure) then it’s still owned by the OS (or their heirs).
If you can find the heirs, make an offer to buy the land from them. Watch out for back property taxes!
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Might be a good idea to go back to the original patent and see if the parcel has riparian rights. Here if it involves accretion, reliction or avulsion along a navigable river, the state owns it until you go through a process with them to survey and patent your claim to it. No AP against the sovereign. I don’t know how it works there though. Personally I wouldn’t wager a growler of beer against JK’s take though.
Willy -
Here if it involves accretion, reliction or avulsion along a navigable river, the state owns it until you go through a process with them to survey and patent your claim to it.
That’s not true. The state doesn’t own accretions. The riparian owner does. The quite title process is a way to provide a written document to match the required record of survey. It was brought about to satisfy lenders and title companies. The state doesn’t issue a patent for the accretions, becasue they cant patent what they don’t own. The court issues a clerk’s deed which is the written proof the title companies crave that the riparian owner owned the accretions all along.
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Thanks for clarifying that aliquot. I stand corrected. Excellent explanation.
Willy -
I personally don’t believe I would recommend as a surveyor a way for someone to gain land that is not theirs. I am not saying you did that. That land might be presently legitimately owned by others, and taking land away from someone by possessing it adversely is a serious stride. I’d recommend a very thorough analysis first, but I imagine your client might be hesitant to pay for that because of the possible bad news or the alert to the potential owning party. I recommend that if you do it, and if you show on your survey that it is possessed by him, be ready to back that up. And be ready for some very, very serious cross examination, including possibly a copy of the thread on the website, and be ready for a non-profit potential fight. I recommend a VERY intense analysis and have his lawyer involved in the analysis.
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The question I have is, how do you do a boundary line adjustment between one owner and no one? That’s what the quite title process is for.
Also, what do you mean no record owner? If the patent didn’t go to the river it is still public land and BLM is the “owner” . If it did, the owner is the last person who had a deed that included the area in question or the heirs. If there were no heirs tour state will have regulations for that. Usually that means the state owns it.
How wide is it? If it is narrow enough the doctrine of strips and gores might apply, which would mean your client already owns it.
Just becasue it is not being taxed doesn’t mean someone doesn’t own it. I wouldn’t want to be involved in helping a client take land from someone else, even if that someone else doesn’t realise they own it.
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You make want to sit down and read the Montana Subdivision and Platting Act again. Every BLA I have ever been part of requires all parties to sign the agreement. And depending on which county you are in, you may have a hard time getting that through, without crossing the Rubicon so to speak.
If things were that easy, I would own a huge piece of the Flying D and not have to work a day for the rest of my life.
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I run into Gore’s and overlaps quite often. The subdivision was done in the 1950s. I suppose one should try and locate heirs of the subdividers, but I say why bother. It appears the additional land is probably accretion. The Lawyer says just survey what land the client wants and have him file Quiet Title on it. That seems more like stealing it than Adverse Possession. I would guess if you contacted the heirs they wouldn’t have a clue what you were talking about. I’m not sure what the County Planner would say about a one owner BLA. I’ll have to approach them on it. Adverse Possession has a dirty ring to it, but it’s legal.
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Quiet title is the more honest approach. It allows others notice so they may bring a claim if they think they have one. AP is illegal trespass unless/until all elements are satisfied at which point possessor gets a pardon. If Montana is a good faith claim State (most are) your client already screwed up by claiming he doesn’t own it and wants to adverse possess it. If bad faith claim State, then just the opposite. But I think I’d be worried about State ownership and a quiet title action should bring up any claim they have before your client gets in too deep. There’s reasons the State might have a claim even if accretions. If they do it would be sovereign rather than proprietary, so no AP.
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Knowing where your boundary is at AND THEN attempting to possess adjacent property is a sure fire way to scuttle an AP claim in Oklahoma.
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First of all you know nothing about AP, and it would take 10 or 25 years not 5 years. The 5 years is for a deed.
Also go take an Ethics class.
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I believe that this is an issue for an attorney to handle. There may be survey work involved, but IMHO this is a legal matter.
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Surveyors should be equipped to recognize fact patterns that support unwritten rights and transfers of title. We can even educate ourseleves on how to walk owners through solutions that are uncontested. When we start advising people in adversarial situations or attempting to adjudicate things we have crossed a line. I’ve made more money cleaning up crap solutions by surveyors than you can imagine.
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Montana is unusual when it comes to AP. I suppose you could say that about most states, each one is different.
Montana has a short statute of limitation time for AP: 5 years.
Yet even with the short time it’s often said that Montana is a difficult state to win an AP claim.
Paying taxes is one key there, in other states it’s a throw away issue.
I try to stay at arms length dealing with AP, I advise my clients to get a good attorney and discuss it with them, I would surely do that in Montana.
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In Montana Adverse Possession is 5 years. The parcel has to be occupied open and nortoriously (a fence) and you must pay taxes on it. How do you pay taxes on it unless you created a parcel the County the County can establish a tax on?
I’m not sure what the ethics violation would be. Can you be more specific what ethics would be violated? The Surveyor is just creating the parcel the client will proceed with an Adverse Action process. Quiet Title is sounding like a better more civilized way to go. I admit I don’t know much about Quiet Title actions. -
If the additional land is accretion, your client already owns it. The only question is how to partion the accretion. You or your client should enlist the help of a surveyor with good riparian experience.
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Do you not see an ethical problem with creating a parcel on someone’s land without their knowledge for the purpose of transferring their land to someone else?
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Do you realize when you Survey a tract there are more parties involved than just your client’s property. You have the adjoining properties, that you need to check to make sure they have the land called for in their deed, if they don’t you need to figure out why and be able to back it up, same with your clients land if they have more or less than they should. Also you have to make sure any public roads, alley ways etc.. have the land they call for, then you must meet State laws, rules, and regulations. Right now you are not surveying the adjoining property, and seems to me you are to lazy to do the research to even find out who owns the land. If it is State land I am not sure if Montana allows Adverse Possession against the State, if is it public land you can’t.
How big of a Cap are we taking about here, is it a 1 foot gap or big enough to drive a car down to access property somewhere? It may have been the developers plan to leave the gap for access to another tract, or to come back in a few years and sell them the land so they can have river front property. Since the subdivision plat does not go to the River, there is a reason find it.
Also you really need to find out who owns the tract, is it the State, Public, heirs, was it sold last year? Get a title company involved.
You have the same Ethics as a lawyer, how much are you charging to steal land from someone?
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